Garing v. Fraser
Decision Date | 23 February 1884 |
Citation | 76 Me. 37 |
Parties | MARY L. GARING v. MARY J. FRASER and others. |
Court | Maine Supreme Court |
ON EXCEPTIONS to the rulings of the presiding justice in sustaining a demurrer to the following declaration.
(Declaration in writ.)
H. D. Hadlock, for the plaintiff.
The allegations in the declaration are such as show that the act complained of was an illegal act and unlawfully done and therefore malicious. Page v. Cushing, 38 Me. 523.
In a legal sense any act, done wilfully and purposely to the prejudice and injury of another, which is unlawful, is against that person malicious. Com. v. Snelling, 15 Pick. 337; Wills v. Noyes, 12 Pick. 324; Mitchell v. Wall, 111 Mass. 492; Humphries v. Parker, 52 Me. 502; Pullen v. Glidden, 66 Me. 202.
This action is brought to recover damages caused by the perjury of the defendants. The constitution Art. 1, § 19, provides that " every person for an injury done him in his person, reputation property or immunities, shall have a remedy by due course of law and right and justice shall be administered freely and without sale, completely and without denial, promptly and without delay."
The 5 Eliz. c. 9, made perpetual by 29 Eliz. chapter 5, § 6, enacted that when any person shall be convicted upon the false testimony of witnesses; that upon every reversal of such conviction the parties grieved may recover his or their damages against all and every such witness.
The law when properly administered gives redress for all injuries caused by the wrongful acts of others, and this ancient statute was enacted for that purpose and it is now undoubtedly common law with us.
As to the effect of entry of nol. pros. see: Brown v. Randall, 36 Conn. 56; Swift's Digest, Vol. 1, p. 491; SHAW, C. J., in Parker v. Fareby, 10 Cush. 281; SHERWOOD, C. J., in Mayer v. Walter, 64 Penn. 286; Brook v. Carpenter, 3 Bing. 297; Jones v. Given, Gilbert's Cas. 185; Gilbert v. Emmons, 42 Ill. 143; Chapman v. Woods, 6 Blackf. 504; Moulton v. Beecher, 15 N.Y.S. C. 100; Driggs v. Burton, 44 Vt. 143; Shock v. McChesney, 4 Yeates 507; Kelley v. Sage, 12 Kan. 110; Marbourg v. Smith, 11 Kan. 554; Morgan v. Hewes, 2 T. R. 225.
M. P. Frank, for the defendants, cited: Parker v. Huntington, 2 Gray 124; Dannehey v. Woodsum, 100 Mass. 195; Gibson v. Waterhouse, 4 Me. 226; Payson v. Caswell, 22 Me. 212; Humphries v. Parker, 52 Me. 502; Parker v. Farley, 10 Cush. 279; Bacon v. Towne, 4 Cush. 217; Brown v. Lakeman, 12 Cush. 482; Willington v. Stearns, 1 Pick. 497; Bennett v. Davis, 62 Me. 544; Brown v. Webber, 6 Cush. 570.
The plaintiff alleges in substance that the defendants maliciously conspired to falsely accuse, and, by means of false testimony, to procure him to be indicted and convicted of the crime of maintaining a nuisance; that by false and perjured testimony the defendants did accuse him of said crime before the grand jury who found an indictment therefor against him; that he was tried on said indictment, and, by means of false and perjured testimony given by them at the trial, the jury found him guilty of the charge; that the court set aside the verdict because of said false and perjured testimony; and that thereupon the county attorney entered upon the records of the court a nolle prosequi to said indictment with allegations of damages.
The gist of the action is not the conspiracy alleged, but the tort committed by the defendants and the damage resulting therefrom. To charge all the defendants, joint action must be proved, and the allegation of a conspiracy...
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